Supreme Court Review: Justices Take On Health Care

This is WEEKEND EDITION from NPR News, I'm Scott Simon. Big event of the week in Washington, D.C. was the three-day argument at the U.S. Supreme Court over the constitutionality of President Obama's health care law. The justices asked questions aimed at forming their minds to decide whether the Affordable Care Act properly regulates commerce or overreaches the Constitution.

The justices are not expected to issue their opinion until June. We're going to try to take stock of the week with NPR's legal affairs correspondent, Nina Totenberg. Thanks for being with us, Nina.

SIMON: Let me begin with you, Nina. Nobody does play-by-play of the Supreme Court like you do.

(SOUNDBITE OF LAUGHTER)

SIMON: Bring us inside that chamber and tell us what went on, what you recall, the atmospherics if you please.

TOTENBERG: Well, on mandate day, which was the second day of argument, I think there were more senators in there then there were across the street in the United States Senate, and cabinet members. The attorney general was there, the secretary of Health and Human Services. It was a really exciting atmosphere, as everybody milled around, and then finally were ordered to their seats.

The justices were not that different than they normally are. They beat up on everybody, but of course all attention was focused on Justice Anthony Kennedy. It became clear very quickly that he's likely to be the swing vote. So take a listen to the first big important thing he said.

JUSTICE ANTHONY KENNEDY: Here, the government is saying that the federal government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases. That changes the relationship of the federal government to the individual in a very fundamental way.

TOTENBERG: Now, whenever Anthony Kennedy talks about individual liberty, if you were the person who is trying to, in his view, invade that liberty in any way, you are in a lot of trouble. And so from that moment on, I think it was pretty clear that the government had an uphill battle, not an impossible one, but an uphill battle. And then at the end of the argument, here's what he said:

KENNEDY: I think it is true that if most questions in life are matters of degree - in the insurance and health care world, both markets - let's stipulate two markets - the young person who's uninsured is uniquely, proximately very closer to affecting the rates of insurance and the cost of providing medical care in a way that is not true in other industries. That's my concern in the case.

TOTENBERG: That is the more practical Anthony Kennedy, and the question is how he weighs these two.

SIMON: Julie Rovner, you covered every aspect of this health care law as it was taking shape. What did you see in the Supreme Court argument?

ROVNER: Well, I think I was as little bit taken aback by what seemed to be the, if not partisan, certainly the ideological split of the justices. One of the things that did strike me though, was this has been a really nasty argument all along by those who oppose and support the law. It's been ugly, if you can use that word, and yet outside the court is really wasn't ugly, it was remarkably civil.

Those who were opposing the law and those who were supporting the law were really extremely nice to each other, even when they were arguing, which really was kind of surprising. It was really a good exercise of democracy in action, if you will.

SIMON: Nina, let me put this out there. A lot of the theater reviews, if you please, or the arguments that were made, suggested that the government just didn't argue their case as well as they hoped to.

TOTENBERG: First of all, let me say that when you're challenging something like the health care law, there really is a bumper sticker aspect to it. It is a much easier case to make. Don Verrilli, the solicitor general, had to make the contrary argument, and he had the misfortune of it's - there's a lot of pollen out there here in Washington at the moment, he literally choked as he began his argument.

He reached for a glass of water, sipped the water, and the ice cube fell out. So I think that threw him off his game for a few minutes, but it was a perfectly good argument.

SIMON: What happens next in the court? How does this play out from here until June, if that's what it is?

TOTENBERG: Well, on Friday the justices met at their weekly conference. There's nobody there except them. So we don't know how they voted. It's a tentative vote anyway. If they had a vote, the chief justice assigns who will write the opinion. If he's in the majority, my guess is that he would write the majority. If he's not, then the senior justice in the majority would assign the opinion, and that would be Justice Ginsburg assigning the opinion.

And then there is this period of drafts flying back and forth, and it's a tricky thing to get five votes. So, you know, you may have one justice send you a note saying that I'm happy to join you in this opinion if you'll delete the paragraph at the top of page five, and another justice saying I'm happy to join you if you'll strengthen the paragraph at the top of page five. But we should have an answer by the end of June.

SIMON: And Julie Rovner, we turn to you. Not to anticipate too much, but if the court does decide to strike down the entire law, what happens?

ROVNER: It would be a big deal, both politically and substantively. I mean, politically, obviously it would enrage those who have supported the law, probably energize the Democratic base, as we like to say in politics. It might take some of the wind out of the sails, interestingly enough, of the Republicans, of the Tea Partiers who of course have been working on this issue for a while. Substantively, it's unclear what would happen.

It would - this has been unprecedented for some 70-some years, that you've had a law of this magnitude struck down by the Supreme Court. A lot of things are already in effect. You've got, you know, 50,000-some people on these health plans for people with preexisting conditions. Those would probably cease to be relatively quickly. You've got two-and-a-half-million young people on their parent's health plans. And so it's completely unclear what would happen to a lot of the things that are already in effect.

So both politically it would have an impact and in terms of what's already happened with the law, it would have an impact.